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Employers unleashed a barrage of comments and criticism at the U.S. Department of Labor when the Family and Medical Leave Act (FMLA) and interim regulations took effect in August 1993. Unfortunately, the comments and criticism were largely unheeded.

The Labor Department recently issued its final FMLA regulations that become effective April 6. The final regulations do little to ease concerns employers had about the law and interim regulations. To management's chagrin, the final regulations are now even broader in many areas.

Because of many significant changes from the interim regulations, we advise employers to review their leave of absence policies and practices as soon as possible to ensure compliance with the law and final regulations and to take advantage of important employer rights provided by them.

The FMLA generally requires employers with 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave during a 12-month period for absences related to childbirth, adoption and serious health condition of the employee and close family members. The employer must maintain the employee's pre-existing group health insurance coverage and restore the employee to the same or equivalent position at the conclusion of the leave.

Serious Health Condition

Perhaps the most significant change with the final regulations is the Labor Department's expanded definition of the term "serious health condition."

"Serious health condition" now includes chronic ailments that continue over substantial periods of time but only cause episodic periods of incapacity lasting less than three days. Some examples are employees stricken with asthma, epilepsy or diabetes.

Other "serious health conditions" now covered include:

• Examinations or tests to determine if a serious health condition exists.
• Multiple treatments for a problem that could evolve into a serious health condition.
• Severe morning sickness for pregnant employees, or time off for prenatal visits.
• Treatments for substance abusers whose absences for treatment meet the serious health condition standards.

Not all the news was bad for employers. The final regulations absolve employers of FMLA obligations to employees who are laid off while on FMLA leave, provided there are no obligations under a collective bargaining agreement. The employer must demonstrate that the leave had nothing to do with the decision to lay off the employee.

The FMLA also requires employees to provide notice to the employer if they want leave to be counted as protected FMLA leave, and two day's notice if they plan to return to work before the scheduled leave expires, or want to extend the leave.

FMLA and Other Laws

As employers found with the interim regulations, FMLA cases can sometimes bring the Americans with Disabilities Act (ADA) or workers' compensation laws into play. The final regulations addressed points related to both:

• Americans with Disabilities Act: Since the laws provide distinct rights, employers must provide leave under whichever law provides the greater benefit. The ADA may allow more leave to qualifying disabled individuals than the 12 weeks permitted under FMLA.
• Workers' Compensation: Employers can designate FMLA leave to run concurrent with workers' compensation leave. Unless so designated, the employee keeps his or her unpaid, job-protected FMLA leave entitlement to use once the workers' compensation leave ends.

The final regulations allow an employee released by a doctor for light-duty assignment to remain on FMLA leave if the employee is unable to return to the original job. Employees who refuse a light duty assignment maintain their right to be restored to their job or an equivalent position until they exhaust their FMLA leave, providing another good reason for employers to designate workers' compensation leave as FMLA leave.

Other Changes

Many employees want a shortened work week or intermittent leave days to deal with an FMLA-covered problem. Employers will face more staffing challenges since the final regulations require them to grant intermittent leave or shortened schedules if:

• Medically necessary for treatment of an employee's serious health condition.
• The employee needs recovery time following a serious health condition.
• The employee must care for or even provide psychological comfort to an immediate family member with a serious health condition.

FMLA Housekeeping

The final FMLA regulations also addressed many administrative requirements. Perhaps the most significant change set the deadline for employers to designate an absence as FMLA leave at two business days after becoming aware that the leave is being taken for an FMLA reason. The employer may give the employee oral notice, but then must follow that up with written notification, usually by the following pay day. Unless leave is designated as FMLA leave in a timely fashion, the employee will keep his or her "bank" of FMLA leave to use on another occasion.

The employer is allowed to designate an absence as FMLA leave after the leave ends only:

• If the employer preliminarily designated the leave as FMLA leave but is awaiting certification.
• If the employer did not know the reason for the leave at the time it was taken, but designates it as FMLA leave within two days of the employee's return to work.

Other administrative changes include:

• Requiring the employer to give 15 day's notice before terminating health insurance coverage for failure to make required premium payments.
• Requiring the employer to follow its established policy for other forms of leave to determine whether an employee is entitled to benefits other than health insurance.
• Introducing a new medical certification form that has been substantially modified. Employers should ensure that they begin to use this new form.

Employers must establish and administer effective policies that preserve the important employer rights mentioned above, such as designating leave, substituting paid leave for unpaid leave and requiring advance notice of leave.

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